Petitioner, Everard Genius, hereinafter defendant, presently convicted of first-degree murder in May 1979, has twice failed before the Supreme Judicial Court.
Commonwealth v. Genius, (Genius I),
(1982)
Defendant killed his girlfriend with ten stab wounds. The Commonwealth charged premeditation and also extreme atrocity, both of which could lead to murder in the first degree. Defendant claimed that the victim turned a gun on him and that he remembered nothing else. A court-appointed psychiatrist, a Doctor Koson, testified that defendant was mentally deficient, but not criminally irresponsible. Defendant’s counsel accepted this. The present proceeding is based upon defendant’s recently obtained psychiatric report from a Doctor Weiss that would support an insanity defense. The Superior Court, “deeply concerned,” granted a pro se motion for new trial following Genius I, but was reversed in Genius II. This petition is the next step. 1
Turning to the merits of the original case, in Doctor Koson’s opinion defendant was not insane, and did not have a mental defect, but his mentality was sufficiently diminished at the time as to detract, if the jury saw fit, from the extreme atrocity that would make for first degree murder in the absence of proof of premeditation. Defendant says he had nothing to lose by having an insanity *61 examination. Admittedly, the Commonwealth would have been required to pay for it, M.G.L. e. 261, § 27C(4), and the report would have been privileged and unavailable to it. M.G.L. c. 233, § 20B. If the report proved affirmative, defendant was ahead. If it proved negative, he need not use it.
The district court responded to this with the generalization that preparation is always in the discretion of counsel, who cannot be faulted for not going on and on, unless there was an indication that there might be a benefit. But there may have been one.
Cf. Profitt v. Waldron,
Unless, of course, there was a reason. In Genius I, the court said,
We conclude that this was a reasonable tactical choice considering that defendant’s own ,expert testified that the defendant was criminally responsible on May 29, 1979. To argue against his own witness on the issue of criminal responsibility would well have undercut his expert’s credibility on the GouldP [2] issues. In the circumstances we find no ineffective assistance of counsel in counsel’s failure to argue lack of criminal responsibility.
387 Mass, at 697,
As to prejudice from counsel’s neglect, we have but to look at the statement of the Superior Court judge (the same one who had tried the case) that he was granting a new trial because the report of Doctor Weiss gave him “deep concern.”
The judgment is reversed and the case remanded to the district court for action consistent with this opinion.